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Attempted Escape as a Lesser Included

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The California Supreme Court today decided People v. Bailey, S187020:

We granted review to determine whether, after finding insufficient evidence to support a conviction for escape from state prison, an appellate court may reduce the conviction to attempt to escape, notwithstanding the trial court‟s failure to instruct the jury on attempt. In this case, the Court of Appeal refused to modify the conviction to attempt to escape on the ground that attempt to escape is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape. Because attempt to escape is not a lesser included offense of escape -- attempt to escape contains a specific intent element not present in escape -- we affirm the judgment of the Court of Appeal.

In a concurring opinion, Justice Werdegar criticizes the language in the standard jury instruction, CALCRIM 2760, that an escape can be completed even if the inmate doesn't make it outside the boundary of the institution.

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